Citation Nr: 21006153 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 13-14 936 DATE: February 3, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for degenerative arthritis of the cervical spine for the period from June 29, 2015 through July 14, 2020 is denied. Entitlement to a disability rating in excess of 30 percent for degenerative arthritis of the cervical spine from July 15, 2020 onward is denied. FINDINGS OF FACT 1. The weight of the evidence is against a finding that for the period from June 29, 2015 through July 14, 2020 the Veteran’s degenerative arthritis of the cervical spine manifested as forward flexion of the cervical spine 15 degrees or less; favorable ankylosis of the entire cervical spine; unfavorable ankylosis of the entire cervical spine; or unfavorable ankylosis of the entire spine 2. The weight of the evidence is against a finding that from July 15, 2020 onward the Veteran’s degenerative arthritis of the cervical spine manifested as unfavorable ankylosis of the entire cervical spine or unfavorable ankylosis of the entire spine. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 20 percent for degenerative arthritis of the cervical spine for the period from June 29, 2015 through July 14, 2020 have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.7, 4.71a. 2. The criteria for entitlement to a disability rating in excess of 30 percent for degenerative arthritis of the cervical spine from July 15, 2020 onward have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.7, 4.71a. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1969 to May 1973; April 1974 to January 1978; and from February 1978 to November 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a September 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, continued a 10 percent rating for the Veteran’s service-connected degenerative arthritis of the cervical spine. In July 2016 the RO granted the Veteran an increase to 20 percent for his cervical spine arthritis, effective June 29, 2015. In July 2019 the Board denied entitlement to a rating in excess of 10 percent for cervical spine arthritis prior to June 28, 2015 and remanded the matter of entitlement to a rating in excess of 20 percent from June 29, 2015 onward. The Board remanded the matter again in June 2020, directing that the RO obtain a VA medical opinion that complied with the Court of Appeals for Veterans Claims (CAVC) holdings in Sharp v. Shulkin, 29 Vet. App. 26 (2017) and Correia v. McDonald, 28 Vet. App. 158 (2016). The Veteran was afforded a VA examination in July 2020. As discussed further below, the Board finds this examination to have been consistent with Sharp and Correia, and thus, that there has been substantial compliance with the Board’s June 2020 remand directives. On the basis of the July 2020 VA examination, in August 2020 the RO granted the Veteran a disability rating of 30 percent for his cervical spine disability, effective July 15, 2020. VA has a “well-established” duty to maximize a Veteran’s benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). As the highest possible rating has not been assigned for the periods on appeal, the appeal continues. See AB v. Brown, 6 Vet. App. 35 (1993). In light of the August 2020 grant, the issues currently before the Board are entitlement to a disability rating in excess of 20 percent for degenerative arthritis of the cervical spine for the period from June 29, 2015 through July 14, 2020; and entitlement to a disability rating in excess of 30 percent for degenerative arthritis of the cervical spine from July 15, 2020 onward. Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability; resolving any reasonable doubt regarding the degree of disability in favor of the claimant; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.10; see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Veteran’s cervical spine disability is rated under the General Rating Formula for Diseases and Injuries of the Spine. The pertinent criteria for a 20 percent disability rating are forward flexion of the cervical spine greater than 15 degrees, but not greater than 30 degrees; combined range of motion of the cervical spine not greater than 170 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The pertinent criteria for disability ratings of 30 percent, 40 percent, and 100 percent are forward flexion of the cervical spine 15 degrees or less; unfavorable ankylosis of the entire cervical spine; and unfavorable ankylosis of the entire spine, respectively. 38 C.F.R. § 4.71a. 1. Entitlement to a disability rating in excess of 20 percent for degenerative arthritis of the cervical spine for the period from June 29, 2015 through July 14, 2020 is denied; entitlement to a disability rating in excess of 30 percent for degenerative arthritis of the cervical spine from July 15, 2020 onward is denied. The Veteran was afforded a VA examination in June 2015. The VA examiner documented cervical forward flexion of up to 30 degrees, with a combined cervical range of motion of 165 degrees, and localized tenderness not resulting in abnormal gait or abnormal spinal contour. The examiner documented no ankylosis, no muscle spasm, and no guarding. The Veteran reported flare ups of pain once or twice a week, lasting approximately one day. As discussed in previous Board remands, the June 2015 examiner did not adequately address additional functional loss attributable to flare ups or repeated use over time. However, in conjunction with other evidence of record, the examination remains probative as to the severity of the Veteran’s cervical spine disability during the period on appeal. Also of record are a series of VA chiropractic treatment and consultation notes. These notes describe the Veteran’s cervical range of motion in qualitative terms, ranging from “very guarded” in April 2019 to “moderately limited” in May 2019 and August 2019, to “mild” limitations in October 2019 and January 2020. While pertinent to the issue on appeal, the Board finds these notes to be of limited probative value as they do not characterize the Veteran’s functional limitations in terms of degrees of range of motion as contemplated by the rating schedule. The April 2019 note documents a normal gait; the October 2019 note describes the Veteran as presenting without any evidence of antalgic posturing or gait dysfunction; and the January 2020 note describes the Veteran’s gait mechanics as within functional limits. The Veteran was afforded another VA examination in July 2020. The July 2020 VA examiner documented cervical forward flexion of up to 25 degrees, with a combined cervical range of motion of 115 degrees, and objective evidence of localized tenderness or pain on palpation of the joint, along with the Veteran’s reports that flare ups occurred if he had to turn his neck quickly, and that these flare ups would last several hours. The examiner documented guarding not resulting in abnormal gait or abnormal spinal contour and no muscle spasm. The Veteran was able to perform repetitive use testing with at least three repetitions, with no additional loss of function or range of motion after three repetitions. The examiner indicated that there was no evidence of pain with weight bearing and no ankylosis. The examiner noted that contralateral joint testing was not applicable, and that range of motion testing in a non-weight bearing and/or passive context could not be performed as it would be “physically impossible for [the examiner] to support the full weight of the Veteran’s head to measure passive range of motion of the neck.” The examiner stated that they were unable to opine as to whether pain, weakness, fatigability, and/or incoordination would significantly limit functional ability after repeated use over time or during flare ups without resorting to mere speculation, and further stated that there was a lack of general knowledge in the medical community at large that would enable any provider to render any such opinion. However, the examiner went on to state that they would estimate that during flare ups, or after repeated use over time, the Veteran’s cervical range of motion would decrease by 50 percent. The July 2020 VA examiner also stated that they were unable to apply the results of their examination retrospectively, but noted the Veteran’s report that his range of motion limitations and pain had worsened in the five years since the last VA examination. The Board finds that for the period from June 29, 2015 through July 14, 2020 the Veteran’s cervical spine disability symptoms do not more nearly approximate the criteria for a disability rating of 30 percent. The June 2015 VA examiner documented cervical forward flexion of up to 30 degrees, with a combined cervical range of motion of 165 degrees, and localized tenderness not resulting in abnormal gait or abnormal spinal contour. The July 2020 VA examiner estimated an additional 50 percent loss of functional range of motion during flare ups; while the examiner declined to opine retrospectively, they noted the Veteran’s report that his cervical spine symptoms had worsened since the time of the June 2015 VA examination. Moreover, the findings in the 2019 clinical records, indicating normal gait and no antalgic posturing, do not provide cause for retrospective application of the July 2020 examiner’s estimates of additional functional loss. Even were the Board to attempt to apply the examiner’s estimate retrospectively, the Veteran’s statement as to the worsening of his symptoms would reflect an additional functional loss of less than 50 percent. Applying any figure less than 50 percent to the June 2015 range of motion test results does not produce a range of motion sufficiently limited to satisfy the range of motion criteria for a rating in excess of 20 percent. The Board acknowledges the June 2015 VA examiner’s finding concerning guarding and tenderness to palpation. However, this finding is considered in conjunction with the examiner’s documentation that the guarding was not severe enough to result in abnormal gait or abnormal spinal contour, as well as the VA treating chiropractic notes characterizing the Veteran’s gait as “normal”, “functional”, and/or “without dysfunction”. (Continued on the next page)   The Board further finds that for the period from June 15, 2020 onward, the Veteran’s cervical spine disability symptoms do not more nearly approximate the criteria for a 40 percent rating. The medical evidence of record does not suggest ankylosis of the cervical spine of any kind or degree. Applying the June 2020 VA examiner’s estimate of an additional 50 percent of functional range of motion loss during flare ups to the June 2020 range of motion test results produces a result of approximately 15 degrees of forward flexion of the cervical spine. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Here, the Board finds that the weight of the evidence is against the application of an evaluation in excess of 20 percent for the Veteran’s cervical spine disability for the period from June 29, 2015 to July 14, 2020; or the application of an evaluation in excess of 30 percent for the period from July 15, 2020 onward. Thus, there is no question to resolve and the lower ratings for the respective periods are appropriate. Id. In light of the foregoing, a grant of a disability rating in excess of 20 percent for the Veteran’s cervical spine disability for the period from June 29, 2015 to July 14, 2020; or of a disability rating in excess of 30 percent for the period from July 15, 2020 onward, are not warranted. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.7, 4.71a. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. C. Sametshaw The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.